People v. Holden CA5

Filed 8/3/16 P. v. Holden CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT

THE PEOPLE, F071674 Plaintiff and Respondent, (Super. Ct. No. 12389A) v.

GARY EUGENE HOLDEN, OPINION Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Mariposa County. F. Dana Walton, Judge. Stephen Gilbert, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Amanda D. Cary and Lewis A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo-

* Before Kane, Acting P.J., Poochigian, J. and Smith, J.

INTRODUCTION On January 29, 2015, a jury found defendant Gary Eugene Holden guilty of one count of being a felon in possession of a firearm (Pen. Code, § 29800, subd. (a)(1)). Defendant admitted a prior strike, and was sentenced to a term of four years in prison. On appeal, defendant contends: (1) there was insufficient evidence to support his conviction for unlawful possession of a firearm; and (2) the trial court erred by failing to instruct the jury that transitory possession of a firearm for the purpose of disposal is insufficient to support a conviction for unlawful possession of a firearm. We affirm. FACTS On September 18, 2014, Mariposa County Sheriff’s Department Sergeant Kim Miller initiated a traffic stop on a vehicle being driven by defendant, a convicted felon. As Miller approached the car, she observed a shotgun sitting between the driver’s seat and front passenger’s seat. Miller ordered defendant and his passenger, Michelle Corn, out of the vehicle, and a subsequent search of the vehicle revealed narcotics, as well as two revolvers, ammunition, and several bags of personal items. Corn stated she was moving out of defendant’s trailer, and the weapons belonged to her and not defendant. DISCUSSION I. There Was Sufficient Evidence to Support Defendant’s Conviction Defendant contends there was insufficient evidence to support his conviction for unlawful possession of a firearm. We disagree. When addressing a challenge to the sufficiency of the evidence, we view the record in the light most favorable to the conviction and presume the existence of every fact in support of the conviction the trier of fact could reasonably infer from the evidence. (People v. Maury (2003) 30 Cal.4th 342, 396.). “Reversal is not warranted unless it appears ‘ “that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].” ’ ” (People v. Duran (2002) 97 Cal.App.4th 1448, 1457.)